These tips may be of interest to the employee. After all, the topic is related to the dismissal of an employee.
Let's start with the basics. General grounds for termination of the employment contract are provided for in Art. 77 Labor Code of the Russian Federation. Most often in labor books there is a link specifically to paragraph 1 of part 1 of article 77 of the Labor Code of the Russian Federation - "the employment contract has been terminated by agreement of the parties." The law also determines that the employment contract can be terminated at the initiative of the employee. An employee may resign “of his own free will” provided that an indefinite period of employment has been concluded between him and the employer. At the same time, the employer should be notified in writing 2 weeks in advance. The employer may also, on his own initiative, terminate the employment contract, but only in cases expressly provided for by law. Similar grounds are given in Art. 71 and 81 of the Labor Code of the Russian Federation. We will not dwell on these grounds in detail, in the law they are formulated clearly, clearly and clearly.
It’s better to dwell on some practical points, the knowledge of which will be useful to both the employee and the employer, in whose head the thought of dismissing the employee crept in.
1. The employer must understand that any of his actions may have opposition. Therefore, a 100% guarantee that they will bring the desired effect, do not count.
2. The employer must understand that it is the totality of his actions working to achieve one goal that can bring its implementation closer.
3. Before starting an action, an employer must understand whether he has a violation of labor law that allows bringing officials of the organization to administrative (Article 5.27 of the Code of Administrative Offenses) or criminal liability (Article 145.1 of the Criminal Code of the Russian Federation). Until the elimination of circumstances that may occur when the above-mentioned negative consequences occur, it is inappropriate to attract additional attention from state authorities.
4. Lift all documents governing labor relations between you and the employee. An employment contract, internal work rules, and documents determining the performance of individual actions (business processes) in your organization will come in handy. At the same time, pay attention to the presence or absence of the employee’s signature on these documents in order to confirm the fact that the employee is familiarized with his duties. Although this can be proved by other means (for example, testimony of witnesses, prolonged performance of relevant duties).
5. Monitor the employee's proper performance of their duties. Whether it’s the start and end time, the procedure for filling outgoing mail, the use of foul language in relation to customers and other employees. Naturally, control over the execution is possible only if there are relevant duties in the documents indicated by me in the previous paragraph.
6. Any facts of non-performance or improper performance by the employee of his duties (hereinafter also misconduct) shall be recorded. The following can be used as evidence: memos and memos from other employees; acts confirming the existence of any facts (for example, the act of absence from the workplace; the act of refusing to provide explanations; the act of refusing to transfer property and documents; correspondence with the client, etc.).
7. Any disciplinary sanction in the form of dismissal is possible only subject to compliance with the Labor Code of the Russian Federation (Art. 192, 193). In particular, it is necessary to observe the time for the employee to provide his explanations, the total period of time during which you can dismiss, calculated from the date of the misconduct.
p.s. We also note that in some cases, the dismissal of an employee should be carried out not through Article 81 of the Labor Code of the Russian Federation, but through the correct and thoughtful use of Article 74 of the Labor Code of the Russian Federation, providing for a change in the terms of an employment contract for reasons related to changes in organizational and technological working conditions. In the latter case, if after changing the terms of the contract the employer has no other work for the employee or the employee refuses it, the labor contract will be terminated (paragraph 4 of article 74, clause 7 of part 1 of article 77 of the Labor Code of the Russian Federation).
The author of the article Vitaly Vetrov
Our law firm provides various legal services in various cities of Russia (including Novosibirsk, Tomsk, Omsk, Barnaul, Krasnoyarsk, Kemerovo, Novokuznetsk, Irkutsk, Chita, Vladivostok, Moscow, St. Petersburg, Yekaterinburg).
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